Lerma, Jose Angel, PD-0745-15

Jose Angel Lerma was indicted for third‑degree felony DWI (two prior DWI convictions alleged) arising from a May 26, 2012 stop; jury convicted and the court sentenced him to ten years (suspended) with seven years community supervision.
Officers observed erratic driving (car missing a front tire, sparks), slow weaving, failure to respond to emergency lights, and confusing/non‑compliant behavior when stopped; officers smelled strong alcohol and administered SFSTs that produced multiple clues of impairment.
Lerma’s post‑arrest blood test measured .062 BAC (below the .08 statutory per se level); DPS forensic testimony allowed for possible retrograde extrapolation but acknowledged uncertainty.
Lerma testified he drank two beers and suffered acute medical/neurological symptoms (possible ministroke) that explained his behavior; he denied drug use.
On appeal to the Thirteenth Court of Appeals, Lerma raised (1) sufficiency of the evidence and (2) that the indictment was defective for failing to plead which definition of "intoxicated" or what intoxicant the State intended to prove; the court affirmed.

Issue	Plaintiff's Argument (Lerma)	Defendant's Argument (State)	Held
1. Sufficiency of the evidence to prove intoxication	Evidence was insufficient because BAC was below .08 and medical explanations could account for behavior	Officer observations, SFST clues, slurred speech, odor of alcohol and jury credibility support conviction under the impairment definition	Affirmed: Evidence sufficient under impairment theory (not per se), jury could disbelieve medical explanation
2. Indictment defective for failing to specify intoxicant or which definition of "intoxicated"	Indictment must allege the type of intoxicant and which statutory definition (loss of faculties v. per se) so defendant gets fair notice; urges overruling of State v. Barbernell in favor of Garcia/Carter	The State says definitions are evidentiary and need not be pled; Thirteenth Court applied Barbernell; issue waived because Lerma failed to move to quash or object before trial	Affirmed: Issue waived for failing to object; on the merits court followed State v. Barbernell — definitions of "intoxicated" are evidentiary and need not be alleged in the charging instrument

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for harm analysis when error preserved or unpreserved)
State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008) (holding definitions of "intoxicated" are evidentiary and need not be pled)
State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991) (earlier rule requiring State to allege which definition/manner of intoxication it would prove)
Garcia v. State, 747 S.W.2d 379 (Tex. Crim. App. 1988) (held State must allege specific intoxicant to give adequate notice)
Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004) (held substance causing intoxication is not an element of DWI)
Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010) (discusses impairment and per se theories of intoxication)